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Nov. 9 — Donald Trump’s victory leaves more questions than answers about how he will operate
the Labor Department, but the lengthy list of workplace regulations finalized in the
past year is now in jeopardy.

In that role, Wilkinson provided legal advice on the persuader rule, which expands
disclosure requirements for employers that use advisers to help fight unionization
drives, and on the Fair Pay and Safe Workplaces executive order. The order requires
federal contractors to report labor violations.

Those regulations were on tenuous ground even before the election because judges have
already issued preliminary injunctions to halt them. They could be more easily removed
when the Republican president-elect takes power, Wilkinson said. Or Trump’s Justice
Department may opt to drop its defense of the rules in court.

The future of the agency’s landmark overtime regulation, which takes effect Dec. 1,
is far more complicated. The Wage and Hour Division’s ability to start enforcement
before Trump takes office means employers that already began complying could be reluctant
to undo salary adjustments in the event the regulation is repealed.

The rule, which doubles the salary level under which employees are entitled to overtime,
is expected to make some 4.2 million workers eligible for time-and-a-half pay. It
was one of the top priorities on President Barack Obama’s middle-class agenda, and
critics are now re-energized in their attempts to provide employers with relief.

Overtime Strategy a `Head Scratcher.’

A federal judge will hear arguments at a hearing in Texas Nov. 16 on whether to issue
a preliminary injunction freezing the rule before it can take effect. But failing
that, Trump’s win still has business advocates considering whether to push for change
through the appropriations process, Congressional Review Act or new rulemaking.

“It’s a real challenge because our members are complying with the law, and it goes
into effect well before President Trump takes office. It’s a real head scratcher,”
Matthew Haller, senior vice president for communications and public affairs at the
International Franchise Association, told Bloomberg BNA Nov. 9. “The inclination is
that Trump is going to throw it out, but you still have to comply.”

“I don’t know any employer who wants to go back to their employees and say ‘just kidding,’”
Haller said.

The Obama administration wanted to ensure that the rule would begin applying before
a new president assumes office.

“That’s the intent of doing it the way they did it—the very fact that you would have
to tell 4.2 million Americans who are getting overtime that they are now no longer
eligible for overtime,” Wilkinson said. “That was the goal.”

Lobbyists for retailers will be asking the Trump transition team to at the very least
remove the provision of the rule that indexes the salary threshold every three years
with inflation.

The president-elect has called for repealing many Obama administration regulations
but hasn’t said if overtime would be included. Even if Trump does try to remove the
rule entirely, the process isn’t as simple as the campaign rhetoric might suggest.

“It’s not like it can just be ‘oh yeah, we changed our mind,’” Randy Johnson, senior
vice president for labor, immigration and employee benefits at the U.S. Chamber of
Commerce, told Bloomberg BNA Nov. 9. “The new administration would have to suspend
the regulation, go through rulemaking to repeal it and take public comments before
they make a decision. They have to provide a reasoned an analysis as to why they would
repeal it.”

Worker Advocates to Make Pitch

Judy Conti, federal advocacy coordinator at the National Employment Law Project, has
been a strong supporter of the overtime rule. NELP “absolutely” will be asking to
meet with Trump’s labor transition team and isn’t resigned to the fact that the worker
advocacy agenda would fall on deaf ears, she told Bloomberg BNA Nov. 9.

“The coalition that he put together that successfully won him the presidency revolves
around a lot of people who are deeply economically scarred from the choices we have
made the past few decades, whether it be around trade or wages,”
Conti said. “There’s a lot that we can do together to give people better economic
stability.”

The pitch on overtime to Trump’s DOL would be that broader overtime access is needed
to update outdated rules that are “rigged against the average worker,” she said.

But employers have said the rule hurts hiring and that many small businesses still
aren’t ready to comply. Several bills to delay or stop the overtime rule are pending
before Congress and could get considered in the lame-duck session, but they all face
a certain veto from the president. In the next Congress, Trump would be more likely
to sign off.

New Labor Secretary to Set Tempo

In addition to considering which Obama regulations to revise, the Trump DOL review
team must find a replacement for Thomas Perez as labor secretary.

Potential nominees mentioned thus far include Victoria Lipnic, who was assistant secretary
of labor for employment standards under President George W. Bush and is now commissioner
of the Equal Employment Opportunity Commission, and Andrew Puzder, chief executive
officer of CKE Holdings, which operates Hardee’s and Carl’s Jr. But the selection
will hinge in part on who gets tapped for higher-profile Cabinet posts.

The employer community will be looking for a labor secretary to undo what they view
as a heavy-handed, aggressive approach under Obama and Perez.

Wilkinson, who also worked in a regional DOL solicitor’s office under Bush, anticipates
a return to the agency’s past.

“Trump just hasn’t paid a lot of attention during the election” to the DOL, he said.
“So this is one where you can have a giveback to the traditional Republicans.”
That means less aggressive legal and enforcement approaches and more scrutiny into
alleged union corruption.

OSHA Regs Also Up for Review

The Occupational Safety and Health Administration has regulations, all recently enacted,
for silica, drug testing, incentive programs and record keeping that the Trump administration
may review, said former agency administrator Edwin Foulke.

Foulke is an attorney with Fisher & Phillips LLP in Atlanta who served in the second
term of the Bush administration.

The first OSHA policies likely to come under scrutiny are various directives and interpretations
the agency issued during the Obama administration, Foulke told Bloomberg BNA Nov.
9.

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